USA v. Deandre Enoch

Filing

Filed opinion of the court by Judge Rovner. AFFIRMED. Kenneth F. Ripple, Circuit Judge, concurring; Daniel A. Manion, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6857513-1] [6857513] [16-1546]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16 1546
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
DEANDRE ENOCH,
Defendant Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CR 66 — Matthew F. Kennelly, Judge.

____________________
ARGUED NOVEMBER 10, 2016 — DECIDED JULY 28, 2017
____________________
Before RIPPLE, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. The government charged Deandre
Enoch with robbing a person having custody of property be
longing to the United States, under 18 U.S.C. § 2114(a) and
brandishing a firearm in relation to a crime of violence, un
der 18 U.S.C. § 924(c)(1)(A)(ii)1. He pleaded guilty to both
1

The Judgment states that Enoch pleaded guilty to “18 U.S.C.
§ 924(c)(1)(A)(iii) Brandishing a Firearm During and in Relation to a

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counts but reserved his right to file an appeal disputing the
district court’s ruling that the former offense qualified as a
crime of violence, thus rendering his brandishing a gun in
connection with that offense a separate crime punishable
under 18 U.S.C. §924(c). Moreover, § 924(c)(1)(D)(ii) of that
same statute requires that a court impose a consecutive sen
tence upon a defendant who carries a firearm in relation to a
crime of violence. Consequently, Enoch’s sentence increased
significantly because the court considered the conviction
under § 2114(a) to be a crime of violence which mandated
the imposition of the consecutive sentence. Enoch now dis
putes that this underlying crime was a crime of violence. The
district court concluded that it was, and sentenced Enoch to
24 months on Count 1 and a consecutive 84 months on
Count 2. Enoch appeals, and we affirm.
I.
The indictment charged Enoch with (1) robbery of a per
son having lawful custody of money of the United States,
and, in effecting the robbery, putting the life of that person
in jeopardy by the use of a dangerous weapon, in violation
of 18 U.S.C. § 2114(a); (2) brandishing a firearm during and
in relation to a crime of violence, namely the robbery
charged in Count I, in violation of 18 U.S.C. § 924(c)(1)(A).2

Crime of Violence.” The reference to subsection (iii) appears to be an er
ror, as the brandishing subsection is § 924(c)(1)(A)(ii). Subsection (iii)
addresses penalties when a firearm has been discharged and there were
no such allegations in this case.
2

The indictment also charged Enoch with possessing a firearm that had
travelled in interstate commerce, after previously having been convicted
of a felony, in violation of 18 U.S.C. § 922(g). Enoch did not plead guilty

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Under 924(c)(1)(D), a court must impose a consecutive
sentence on those who are convicted under §924(c)(1)(A),
that is:
any person who, during and in relation to any
crime of violence … uses or carries a firearm,
or who, in furtherance of any such crime, pos
sesses a firearm … .
18 U.S.C. § 924(c)(1)(A).
In other words, the robbery of government property, (18
U.S.C. § 2114(a)) was the underlying or anchor crime which,
when accompanied by the brandishing of the firearm, consti
tuted a separate offense under § 924(c) and required the
court to sentence Enoch to consecutive sentences.
The only question in this case, therefore, is whether the
underlying crime in 18 U.S.C. § 2114(a)—robbing another of
government property—is a crime of violence such that it
triggered the imposition of § 924(c). Section 924(c)(3) of the
statute defines a crime of violence as follows:
(3) For purposes of this subsection the term
“crime of violence” means an offense that is a
felony and—
(A) has as an element the use, attempted
use, or threatened use of physical force
against the person or property of anoth
er, or

to this charge and it was not included in the judgment of conviction.
(R. 13, 59).

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(B) that by its nature, involves a sub
stantial risk that physical force against
the person or property of another may
be used in the course of committing the
offense.

18 U.S.C. § 924(c)(3).
We can quickly dismiss the possibility that robbing an
other of government property (18 U.S.C. § 2114(a)) consti
tutes a crime of violence under part B above, often referred
to as the “residual clause.” This court recently held, follow
ing U.S. v. Johnson, 135 S. Ct. 2551 (2015), and its analysis of a
similar residual clause under the Armed Career Criminal
Act, that this portion of the statute is unconstitutionally
vague. United States v. Cardena, 842 F.3d 959, 996 (7th Cir.
2016).
That leaves us to focus solely on whether the underlying
crime of robbing another of government property “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C.
§ 924(c)(3)(A). For this we turn a magnifying glass back on
that statute describing that predicate crime of robbery of
government property:
(a) Assault.—A person who assaults any per
son having lawful charge, control, or custody
of any mail matter or of any money or other
property of the United States, with intent to
rob, steal, or purloin such mail matter, money,
or other property of the United States, or robs
or attempts to rob any such person of mail
matter, or of any money, or other property of

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the United States, shall, for the first offense, be
imprisoned not more than ten years; and if in
effecting or attempting to effect such robbery
he wounds the person having custody of such
mail, money, or other property of the United
States, or puts his life in jeopardy by the use of
a dangerous weapon, or for a subsequent of
fense, shall be imprisoned not more than twen
ty five years.
18 U.S.C. § 2114(a).
If this robbery of government property offense consti
tutes a violent felony under 18 U.S.C. § 924(c)(3)(A), then the
court properly denied Enoch’s motion to dismiss Count 2,
and correctly sentenced Enoch consecutively. If not, the dis
trict court erred. We review the district court’s interpretation
of § 924(c) de novo. Cardena, 842 F.3d at 1000.
In order to avoid a host of practical, fairness, and consti
tutional issues, the Supreme Court has determined that a
sentencing court must not commit mini trials to determine
whether the conduct committed in an underlying or anchor
crime was actually violent or not. Moncrieffe v. Holder, 133
S. Ct. 1678, 1690 (2013) (“The categorical approach serves
‘practical’ purposes: It promotes judicial and administrative
efficiency by precluding the relitigation of past convictions
in minitrials conducted long after the fact.”); Chambers v.
United States, 555 U.S. 122, 125 (2009) (“by so construing the
statute, one avoids the practical difficulty of trying to ascer
tain at sentencing, perhaps from a paper record mentioning
only a guilty plea, whether the present defendant’s prior
crime, as committed on a particular occasion, did or did not
involve violent behavior.”).

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Instead, a court must use a categorical approach and look
only to the statutory elements of the prior offense, and not to
the particular facts underlying those convictions. Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016); Taylor v. United
States, 495 U.S. 575, 600 (1990). In doing so, the court assesses
the elements of the underlying crime to see if they meet the
definition of a “violent felony.” Mathis, 136 S. Ct. at 2248. If
the statute outlining the underlying offense sweeps more
broadly than the generic crime described in the sentencing
enhancement, a conviction of the underlying statute cannot
count as a predicate offense. Descamps v. United States, 133
S. Ct. 2276, 2283 (2013).
When the predicate statute “sets out a single (or “indi
visible”) set of elements to define a single crime,” the cate
gorical approach is straight forward. Mathis, 136 S. Ct. at
2248. In some statutes however, like § 2114(a) here, the stat
ute is divisible, that is, it contains within it crimes with dif
ferent elements. For example, in this case the statute contains
alternative elements of the crime—a defendant can commit
the crime of robbery of government property, with or with
out wounding the victim and putting her life in jeopardy. If
the defendant wounds or puts the victims life in jeopardy,
the sentence increases from “not more than ten years” to
“not more than twenty five years.” 18 U.S.C. § 2114(a). If
statutory alternatives in a criminal statute carry different
punishments, then they must be elements of different
crimes. Mathis, 136 S. Ct. at 2256 (citing Apprendi v. New Jer
sey, 530 U.S. 466 (2000)). And so, “[t]he first task for a sen
tencing court faced with an alternatively phrased statute is
thus to determine whether its listed items are elements or
means.” Id. And if the statute with alternatively phrased op
tions contains elements of different crimes, then the court

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may and should “review the record materials to discover
which of the enumerated alternatives played a part in the
defendant’s prior conviction.” Id. In this case, the statute
contains different elements and different punishments and
therefore is divisible. The portion of the statute before the
semi colon on pages 4 5, supra, constitutes a different crime
than the part of the statute after the semi colon. The modi
fied categorical approach, therefore, dictates that the court
should look to record materials to determine which of the
two alternatives played a part in Enoch’s conviction under
§ 2114(a).
A court’s review of the record materials is not unlimited,
but to the contrary, quite conscribed. This limited review,
called “the modified categorical approach,” allows a court to
look beyond the statutory definition to a limited number of
documents to determine to which crime, with which ele
ments, the defendant was convicted. Johnson v. United States,
559 U.S. 133, 144 (2010); Mathis, 136 S. Ct. at 2249. The Su
preme Court has instructed that a sentencing court may ex
amine: “the statutory definition, charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant as
sented.” Shepard v. United States, 544 U.S. 13, 16 (2005). On
the other hand, a “court may not consider police reports,
complaint applications, or other sources that do not reflect
either the defendant’s own admissions or the findings of a
judge or jury. United States v. Ker Yang, 799 F.3d 750, 753 n.2
(7th Cir. 2015). The permissible documents are sometimes
referred to as “Shephard documents.”
In this case, the indictment to which Enoch pled guilty
charged him with

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robb[ing] a person having lawful charge, con
trol, and custody of money of the United
States, namely, approximately $850 in United
States currency, and in effecting such robbery
did put the life of said person in jeopardy by
use of a dangerous weapon; In violation of Ti
tle 18, United States Code, Sections 2114(a) and
2.

(R. 13 at 1).
Thus, even the briefest peek at the Shephard approved in
dictment indicates that the government charged Enoch, and
Enoch pleaded guilty to, the second part of the statute.
The parties spend much time arguing about whether the
description of “robbery” or “assault” in the first section of
§ 2114(a) (the ten year maximum sentence portion where a
defendant does not wound or put the life of the victim in
jeopardy) constitutes a crime of violence pursuant to
§ 924(c)(3). We need not resolve that matter today. Section
2114(a) is a divisible statute with two distinct parts with sep
arate elements and sentences. We conclude below that the
second part of the statute constitutes a crime of violence. Be
cause it is clear that Enoch was charged with and pleaded
guilty to that portion of the statute, we need not consider
whether the other alternative scenario set forth in the first
portion of the statute constitutes a crime of violence. My es
teemed colleague would prefer to resolve the matter today
by declaring that all robbery “as it has been used across fed
eral statutes and specifically as it is used in § 2114(a), quali
fies as a crime of violence sufficient to serve as a predicate
for a §924(c) conviction.” Post at 13. Because we know that
Enoch was convicted under the second part of a divisible

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statute, which clearly, as we now conclude, involves a crime
of violence, we believe it inadvisable to opine as to the term
“robbery” across all federal statutes or even in all instances
under § 2114(a), including under the first part of the divisi
ble statute. Our task is to rule narrowly on the case before us
today and not to render a broad opinion as to the application
of the term “crime of violence” to all federal statutes or even
to all robberies within this divisible statute. See Milwaukee
Police Ass n v. Bd. of Fire & Police Comm rs of City of Milwau
kee, 708 F.3d 921, 926 (7th Cir. 2013) (“federal courts are pro
hibited from rendering advisory opinions; they cannot di
vine on ‘abstract dispute[s] about the law;’” United States v.
Gilmore, 454 F.3d 725, 731 (7th Cir. 2006) (Rovner, J. concur
ring) (“Under ordinary principles of the adversary system,
we do not reach out to decide questions not before us.”) (cit
ing Bethea v. Robert J. Adams & Assoc., 352 F.3d 1125, 1130 31
(7th Cir. 2003) (Cudahy, J., concurring in part and dissenting
in part)). This is particularly true when the crime of assault
in the first part of the statute (which is still part of § 2114(a))
can be committed without any physical contact at all, and
therefore presents much more challenging legal questions
about whether it may or may not qualify as a crime of vio
lence for these purposes. See, e.g. United States v. Taylor, 848
F.3d 476, 493 (1st Cir. 2017) (noting, while assessing a similar
federal statute, that assault is the prototypical overbroad
crime in determinations of crimes of violence).
There can be no doubt that wounding a victim or putting
the life of a victim in jeopardy is a violent crime. In Johnson,
the Supreme Court interpreted the meaning of “physical
force” as used in a different, but virtually indistinguishable

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section of 18 U.S.C. § 924.3 Johnson, 559 U.S. at 138–40. In
Johnson, the Supreme Court held that “physical force” is
“force capable of causing physical pain or injury to another
person.” Id. at 140. We conclude, as did the district court,
that force capable of wounding another or putting the life of
another in jeopardy is a force that is capable of causing inju
ry to another person and therefore qualifies as a crime of
violence.
Enoch argues that our decision in Rodriguez allows for a
definition of robbery that can be effected with minimal force
and without inflicting any pain or injury on the victim and
without even threatening or attempting to inflict pain on the
victim. See Brief of Appellants at 15 (citing United States v.
Rodriguez, 925 F.2d 1049, 1052 (7th Cir. 1991)). In Rodriguez,
the defendant grabbed a key chain attached to a postal carri
er’s belt by a leather loop, and broke the loop, making off
with the keys. Id. at 1051. The court held that this amount of
force, although minimal, was sufficient to qualify the crime
as robbery under the common law definition that requires
“asportation of property from the person of another against
his will by violence or putting him in fear.” Id. at 1052 (citing
Costner v. United States, 139 F.2d 429, 431 (4th Cir. 1943)). But
again, we need not determine whether Enoch is correct that
a defendant can commit robbery as described under the first
portion of the statute without an “element of the use, at
tempted use or threatened use of physical force against the
person or property of another,” as required by § 924(c)(3)(A).

3

We declared the language of the two relevant sections to be “virtually
indistinguishable” in Cardena, 842 F.3d at 996.

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Enoch, however, argues further that the second portion
of the statute can be committed without the requisite force
dictated by § 924(c)(3)(A). Broken down into its individual
steps, Enoch’s argument is essentially as follows: (1) The
second portion of § 2114(a) describes a crime in which the
defendant effects a robbery and while doing so “puts [the
victim’s] life in jeopardy by the use of a dangerous weapon.”
18 U.S.C. § 2114(a). (2) This court, in Rodriguez, stated that a
defendant can be convicted of the second part of § 2114(a)
even if the gun is not drawn, as possession of a gun in and of
itself puts the victim’s “life in danger.” Rodriguez, 925 F.2d at
1052–53. (3) Therefore, according to Enoch’s arguments, a
defendant robbing government property may put a victim’s
life in danger without fulfilling the requirement of
§ 924(c)(3)(A) which requires the “use, attempted use, or
threatened use of physical force.”
We agree with the district court, however, that “it is be
yond question that a robbery that puts a person’s life in
jeopardy by the use of a dangerous weapon is a violent
crime under the Johnson definition and section 924(a).” Unit
ed States v. Enoch, No. 15 CR 66, 2015 WL 6407763, at *3 (N.D.
Ill. Oct. 21, 2015). We are not alone in so thinking. See In re
Watt, 829 F.3d 1287, 1290 (11th Cir. 2016) (if the jury finds
that the victim’s “life was put in jeopardy,” this satisfies the
elements clause that the underlying felony offense have “as
an element, the use, attempted use, or threatened use of
physical force against the person or property of another”).
Moreover, Enoch pleaded guilty to § 924(c)(1)(A)(ii)—
brandishing a gun during commission of the crime4. We

4

See note 1, supra.

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cannot see how a defendant can brandish a gun in such a
manner as to put the life of a victim in jeopardy without
committing an offense that “has as an element the use, at
tempted use, or threatened use of physical force against the
person or property of another.” § 924(c)(3)(A).
We conclude, therefore, that the second part of 18 U.S.C.
§ 2114(a) constitutes a crime of violence as described in 18
U.S.C. § 924(c) and, by the terms of that statute the district
court properly concluded that the charge could not be dis
missed and appropriately sentenced Enoch to consecutive
sentences. The decision of the district court is AFFIRMED.

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RIPPLE, Circuit Judge, concurring. My colleagues have
given, in the majority opinion, a solid analysis of the problem
before us, and I have no objection to that analysis. I write sep
arately because, in my view, there is a less complex, but
equally valid, approach to the same result. I join my col
leagues in the conclusion that Mr. Enoch’s conviction for
brandishing a firearm in relation to a crime of violence, 18
U.S.C. § 924(c)(1)(A)(ii), must be affirmed.
Mr. Enoch’s conviction for robbery of a person having cus
tody of property belonging to the United States, 18 U.S.C. §
2114(a), qualifies as a crime of violence under Johnson v.
United States (“Johnson I”), 559 U.S. 133 (2010), and circuit law.
The majority concludes that the aggravated § 2114(a) offense,
to which Mr. Enoch pleaded guilty, that required that he put
a victim’s “life in jeopardy by the use of a dangerous
weapon,” is plainly a crime of violence. I write separately be
cause I conclude that a “robbery,” as it has been used across
federal statutes, and specifically as it is used in § 2114(a), qual
ifies as a crime of violence sufficient to serve as a predicate for
a § 924(c) conviction because it “has as an element of the use,
attempted use or threatened use of physical force against the
person or property of another,” 18 U.S.C. § 924(c)(3)(A).
In Johnson I, the Supreme Court held that a Florida battery
conviction, which could be based as a matter of state law on
“any intentional physical contact, no matter how slight,” 559
U.S. at 138 (emphasis in original) (internal quotation marks
omitted), did not qualify as a crime of violence because
“‘physical force’” as used in the federal statute “means violent
force,” not merely unconsented to contact, id. at 140 (empha
sis in original). Nevertheless, as we already have noted, the

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threshold that the Court drew in Johnson I “is not a high one.”
United States v. Duncan, 833 F.3d 751, 754 (7th Cir. 2016).
In the time since Johnson v. United States (“Johnson II”), 135
S. Ct. 2551 (2015) (holding the residual clause of the Armed
Career Criminal Act (“ACCA”) unconstitutional), was de
cided, we have had many occasions to consider whether spe
cific offenses suffice as crimes of violence under the force
clause. We have considered several specific robbery offenses,
both federal and state, and, to date, we have found them all
to contain an element of force sufficient to support a § 924
conviction or enhancement. See, e.g., United States v. Armour,
840 F.3d 904, 907–09 (7th Cir. 2016) (federal armed bank rob
bery under § 2113 is a crime of violence); United States v. An
glin, 846 F.3d 954, 965 (7th Cir. 2017) (Hobbs Act robbery,
which can be committed by putting a person in fear, is a crime
of violence); see also United States v. Chagoya Morales, No.
16 1198, 2017 WL 2486022, at *8–9 (7th Cir. June 9, 2017) (Illi
nois aggravated robbery, like robbery, is a crime of violence
under the force clause); Duncan, 833 F.3d at 755 (Indiana rob
bery, which can be accomplished by putting a victim “in fear”
is a crime of violence under the force clause); United States v.
Maxwell, 823 F.3d 1057, 1060–62 (7th Cir. 2016) (Minnesota
simple robbery is a crime of violence under the force clause).
We have reversed convictions or enhancements where we
have found that the crime can be committed with essentially
no force. See United States v. Jenkins, 849 F.3d 390, 393–94 (7th
Cir. 2017) (federal kidnapping, which can be accomplished by
“hold[ing] for ransom or reward or otherwise,” is not a crime
of violence); United States v. Rollins, 836 F.3d 737, 742 (7th Cir.

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2016) (possession of a sawed off shotgun is not a crime of vi
olence under the force clause).1
Robbery under § 2114(a), like robbery under each of the
other federal statutes considered above, “has as an element
the use, attempted use, or threatened use of physical force
against the person or property of another.” As the above cited
cases demonstrate, we have concluded without difficulty that
robbery offenses, whether committed by actual physical force
or intimidation, exceed the minimum force necessary to sat
isfy the federal statutes. First, as we stated in United States v.
Armour, 840 F.3d 904, 909 (7th Cir. 2016), considering whether
bank robbery by intimidation under § 2113 was a crime of vi
olence, “[a] bank employee can reasonably believe that a rob
ber’s demands for money to which he is not entitled will be
met with violent force of the type satisfying [Johnson I] be
cause bank robbery under § 2113(a) inherently contains a
threat of violent physical force.” The same can be said here.
The threat of force sufficient to meet the threshold of pain es
tablished by the Supreme Court is inherent in robbery of a
person having custody of the mail or other federal property
to the same extent as it is in bank robbery. The snatching of or
1

The decision of the Fourth Circuit, evaluating a North Carolina robbery
offense, does not assist us, in that the specifics of the state’s interpretation
of its own statute put it squarely within the prohibitions of Johnson I. See
United States v. Gardner, 823 F.3d 793, 803–04 (4th Cir. 2016). In Gardner,
the court held that the North Carolina offense could be committed with
de mininis contact, and therefore was indistinguishable from the predicate
offense the Court had considered in Johnson I. See also, e.g., United States v.
Bell, 840 F.3d 963, 966–67 (8th Cir. 2016) (holding that Missouri robbery
did not qualify as a crime of violence under the force clause because Mis
souri cases had approved of convictions where the defendant had merely
“bumped” or “nudged” the victim).

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demand for property as punished by federal criminal law car
ries with it an implicit threat of at least this level of violence.
Nothing about the robbery offense under § 2114(a) distin
guishes it in any meaningful way from the other robbery of
fenses, federal and state, that we have considered and found
sufficient.
Moreover, contrary to Mr. Enoch’s contentions, United
States v. Rodriguez, 925 F.2d 1049 (7th Cir. 1991), confirms this
result. In that case we considered an offense committed by
ripping off a set of post office box keys that were attached to
the victim postal worker’s belt loop. We noted that “[c]ourts
have upheld robbery convictions when the item taken is ‘so
attached to the person or his clothes as to require some force
to effect its removal.’” Id. at 1052 (citing 2 W. LaFave &
A. Scott, Jr., Substantive Criminal Law § 8.11(d)(1) at 446
(1986)). Although we used the term “rather minimal” in con
nection to the level of force used, it is plainly above the touch
ing without consent disapproved of by the Court in Johnson I.
Rodriguez does not establish that § 2114(a) is somehow a spe
cial offense requiring a lower level of force than other federal
robbery offenses; it merely held, consistent with existing prec
edent, that the low level of force required for robbery was sat
isfied by the ripping away of the keys.2

2

The current edition of Substantive Criminal Law continues in the same
vein, distinguishing robbery from larceny by the addition of violence or in
timidation, and defining violence in a manner similar to that envisioned in
Johnson I:
The great weight of authority … supports the view that
there is not sufficient force to constitute robbery when the

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Accordingly, I would hold that robbery under § 2114(a),
like many other robbery offenses we have considered, quali
fies as a crime of violence.

thief snatches property from the owner’s grasp so sud
denly that the owner cannot offer any resistance to the
taking. On the other hand, when the owner, aware of an
impending snatching, resists it, or when, the thief’s first
attempt being ineffective to separate the owner from his
property, a struggle for the property is necessary before
the thief can get possession thereof, there is enough force
to make the taking robbery. Taking the owner’s property
by stealthily picking his pocket is not taking by force and
so is not robbery; but if the pickpocket or his confederate
jostles the owner, or if the owner, catching the pickpocket
in the act, struggles unsuccessfully to keep possession, the
pickpocket’s crime becomes robbery. To remove an arti
cle of value, attached to the owner’s person or clothing,
by a sudden snatching or by stealth is not robbery unless
the article in question (e.g., an earring, pin or watch) is so
attached to the person or his clothes as to require some
force to effect its removal.
3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d)(1) at 181–83 (2003)
(footnotes omitted).